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Legal and Constitutional Affairs Legislation Committee - 20/05/2015 - Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015

DIXON, Ms Jane Alison QC, Immediate Past President, Liberty Victoria

MCKENZIE, Mr Kirk Stewart, Chair, Human Rights Committee, Law Society of New South Wales

YOUNG, Ms Courtney, Member, Australian Drug Law Reform Initiative


Ms Dixon's e videnc e was taken via teleconference—

CHAIR: Welcome all. We have received submissions from each of you, which we have respectably numbered one, two and 11. If any of you want to amend or alter those submissions you can do so. Now is the appropriate time. I understand you have been advised on parliamentary privilege and protection of witnesses. If Mr McKenzie and Ms Young will acquiesce, I might ask Ms Dixon to start off.

Ms Dixon : I will be speaking in respect of the Liberty Victoria submission, in respect of the proposed legislation. In essence, much of what Liberty Victoria has to say about the proposed changes occurs what the Law Council has submitted. We have read their submission. We submitted before they did, but we are pretty much ad idem with many of their submissions, apart from there being a slight distinction in relation to the 'diverse burden of proof' for—we share the concerns put forward by the Law Council about the changes proposed in respect for recklessness or attempted drug and—the changes proposed in relation to 'intent to manufacture', changes proposed in respect of 'knowingly concerned'. I have heard some of that discussion while I have been sitting here and changes proposed in respect of mandatory sentencing, reconnaissance, release orders and freedom from self-incrimination.

We have concerns about all of those matters, which we have set out in our submission. Much of what we have to say, as I said, echoes the Law Council's views, and the explanations of those views in their impressive written submission.

Ms Young : I am also a lecturer at the University of New South Wales, a criminal law defence solicitor and author of a practitioner text on drug law. Today, I am a representative of the Australian Drug Law Reform Initiative, which is a group of academics, lawyers, fellow students past and present, based at the University of New South Wales, particularly in the law faculty there. The role of ADLRI is to provide a legal perspective on drug-policy issues. Our submission, as you would be aware, focused on those amendments that are targeted to part 9 of the code.

At the heart of our submission is the concern that the amendments to the manufacture provisions and the 'knowingly concerned' aspect of the changes to chapter 2 widen the expanse of liability too far. It swings the pendulum too far, so in that sense we would support and echo the comments made earlier today by the Law Council and also the submissions on the drug aspects made by Liberty Victoria as well.

Mr McKenzie : Our particular concern is with the mandatory minimum sentencing provisions in schedule 6 of the bill. We have made a reasonably short submission in which we have highlighted what we say are the breaches of article 9(1) of the International Covenant on Civil and Political Rights—that is the one that applies to arbitrary detention—and secondly article 14(5) of the same covenant, which provides that member states should provide a right of appeal, not only against conviction but against sentence. And we say that there is arbitrary detention involved in a mandatory minimum sentence, because it takes away the discretion of the court. Secondly, there could not be an appeal against the mandatory minimum sentence if it was applied. I think our submission in that respect echoes the Law Council's submission and also several other submissions made to the inquiry.

I would particularly like to very briefly set the historical context of the covenant itself. Whenever there is a reference by lawyers to the International Covenant on Civil and Political Rights you see some politicians' eyes glaze over, and mentally they are thinking, 'Not that again!' But Australia had a very key involvement in the genesis and drafting of that document, and perhaps very briefly I might just sketch it in for you. Of course, back in the 1940s, when the United Nations was formed, Australia had a particular interest in the drafting of the Universal Declaration of Human Rights because, I think, of the interests and expertise of its then Attorney-General and foreign minister, or external affairs minister as it was called then, Dr Evatt. It is history that he took a team of diplomats, most of whom later became very prominent as diplomat secretaries of the Department of Foreign Affairs, and prominent people like Sir Alan Watt, Ralph Harry, John Hood and Paul Hasluck, and those people had a considerable influence over the drafting of the universal declaration. And then in the late 1940s it was decided by the United Nations to incorporate the provisions of the universal declaration into a treaty, which could then be implemented into the domestic laws of UN member nations, with a view to strengthening the legal framework of those countries so that the atrocities of World War II would not be repeated.

Initially they thought of a single treaty, but then it was split into two treaties, which ultimately became the covenant on civil and political rights and the one on economic, social and cultural rights. In 1949 there was a debate, when they were still drafting one treaty, about how you would phrase arbitrary detention. In fact, on 20 May 1949, precisely 66 years ago, the Australian delegate, John Hood, who was the permanent Australian representative to the UN, drafted what is now the second sentence of article 9(1), which is the one applicable, that we refer to, which simply says that no-one shall be subjected to arbitrary arrests or detention. It was a compromise amendment but it actually was accepted unanimously by the committee and survived 17 years of amendments until the covenant was approved in 1966.

The next element that I would refer to is the fact that, in the early 1950s when it was decided to split the proposed treaty into two, Australia still had a key involvement through our representative on the United Nations Human Rights Commission, the former Commonwealth Grants Solicitor, Mr Fred Whitlam, who in 1951 became the rapporteur or, effectively, the No. 2 in that commission. For the next three years, he and the chair supervised the first draft of this covenant which was initially presented to the General Assembly in 1954.

It took another 12 years of continual drafting and redrafting in which Australia had a part—under a coalition government, I might add—and, in 1966, when the final draft was debated, these two articles I have just referred to were both supported by Australia, and Australia supported the adoption of the treaty.

We jump ahead to 1972, in the first two weeks of the Whitlam government, Whitlam junior, if I may refer to him like that, who was then the foreign minister, Prime Minister and Attorney-General, signed the covenant on Australia's behalf. Later in 1980 under a coalition government—and I think the relevant people would have been Andrew Peacock as foreign minister and Senator Peter Durack as Attorney-General—they then ratified the treaty. From August 1980 onwards, Australia has had an obligation under international law to implement the terms of the treaty into its domestic laws.

I make two points: firstly, Australia has had a key involvement in this area of international law right from the beginning and supported these principles right through the formal process of initiating, drafting, approval, signing and ratification. Secondly, all sides of politics have been a part of that. This is not something that the history suggests was just supported by one or other side of politics. For Senator Wright's benefit, I think that predated the Greens era but I know the Greens have also been supportive.

These principles have been supported in the past by Australian governments and political forces. We say they should be continued to be supported, and these provisions, as a result, the mandatory minimum sentencing provision should be removed. Thank you.

CHAIR: Thank you.

Senator JACINTA COLLINS: I do not think I have questions other than what we covered previously with the Law Council. I go to Liberty Victoria: Ms Dixon, could you elaborate on your position in relation to the reverse onus—it seems to be about the only, I think as you highlighted, the point of difference amongst the various submissions.

Ms Dixon : We acknowledge that in Victoria, as mentioned by Dr Neal, there are some reverse onus provisions in our state law about, for example, sexual penetration with a person who is under 16 but alleged by the accused person to have been believed to have been over 16 at the time. Perhaps that was part of the thinking that impacted on the Law Council's views about this.

Liberty Victoria maintains concerns about reverse onus provisions, in particular, that the right to silence cuts away at the requirement for the prosecution to prove guilt by an effect of casting an onus on the accused and forcing the accused into the witness box or to give evidence in circumstances where they have a right to silence. That may be problematic if it is a joint trial where there are other charges as well, because if they have to go into the witness box to give their defence about the circumstances of the marriage and there are a number of other charges as well then they might have to be severed because of the potential unfairness of the reverse onus provision.

In addition, there is the problem that they may need to perhaps call the child or other members of the child's family to produce the relevant evidence and, in doing so, create more problems than it solves. So we suggest that it is not necessary to go so far as to create the reverse onus provision, but we have nevertheless supported the amendment that expands the definition of forced marriage to encompass those circumstances where a person cannot give full and fair consent because they are incapable of understanding the nature and effect of marriage.

Senator JACINTA COLLINS: Thank you for that.

Senator WRIGHT: Can I first of all ask Ms Dixon about the issue of the introduction of the concept of 'knowingly concerned'. You note in your submission that one fundamental problem with this concept of an accused person being knowingly concerned with the commission of an offence is that it allows the person to be punished as a principal offender in circumstances where they may have become involved after the actual actus reus, the conduct element of the offence, has been completed.

Ms Dixon : Yes.

Senator WRIGHT: You note that there are clear and dangerous consequences if we were to expand criminal responsibility in this way: one example is when applied to journalists and whistleblowers. Can you expand on that a little and just provide an example perhaps so that we can understand better what your concerns are.

Ms Dixon : It is interesting when one looks at the last few paragraphs of the Law Council submission. They say at paragraph 48:

When might a person be ‘knowingly concerned’ in the commission of an offence where he or she is not aiding and abetting, counselling or procuring its commission?

Then they talk about a journalist going undercover, for example. That seems like a very good example and, as I was thinking about that, it occurred to me that I wonder whether just watching an online video or a YouTube of a particular thing as it is happening, or downloading information from the internet, might be argued to make you knowingly concerned in a matter. 'Knowingly concerned' is a very vague, amorphous concept, which is no doubt part of the reason why, when the Criminal Code committee were considering the forms of liability, they decided not to include it and instead have a fairly extensive range of forms of liability available under the Criminal Code, which we would argue are quite sufficient.

There is just that risk with family members, people going about the job of inquiring into something for professional or other reasons or simply obtaining information. For example, you may have people in the terrorism context who are trying to find out about what is actually going on with young people and, in doing so, become aware of information. That would be most unfortunate if they could be charged with being knowingly concerned, simply by the fact that they become aware of behaviour of a certain person, they want to seek to change that person's mind or educate them or assist the family to redirect the person, but then they end up charged with a criminal offence on this really vague concept of being knowingly concerned, whereas we would argue that 'aiding and abetting' and all of those traditional formulae for criminal liability are sufficient for people who are actively participating in criminal behaviour with the intention to participate in criminal behaviour.

Senator WRIGHT: We heard an example that was raised by Dr Neal about a particular case that he had had where it makes one realise how complex these issues can be and how sometimes judgement can be involved in someone perhaps trying to find the best way to prevent an offence being committed and then ending up caught up in it. I guess it is the vagueness around what this concept of 'knowingly concerned' means. Does it strike you as ironic or a bit inconsistent in the sense that on the one hand we have provisions to increasingly introduce mandatory sentencing, which essentially takes away the discretion of courts and judges to take into account circumstances, and yet, on the other hand, this kind of concept of 'knowingly concerned' suggests that there would be a broader element of discretion or subjectivity, maybe on the part of law enforcement officers or courts, in trying to work out whether the facts of a particular case fall within this concept. That strikes me as being ironic.

Ms Dixon : It does, because one can imagine, for example, if a husband and wife are travelling together and the husband is a mad keen sporting shooter and he is taking his guns over to New Zealand, for example—stupidly, but perhaps not with any really dangerous plans—and his wife fills out the card. She is perhaps knowingly concerned: even though she is only very peripherally involved in what he does, she could end up, because of the extension of 'knowingly concerned' and the further potential provision of mandatory sentencing, in prison for a substantial period of time. This is the problem: there is a double whammy there, and that is why we oppose what we say are unnecessary changes when the current code is quite comprehensive.

Senator WRIGHT: It is a fundamental principle, particularly of criminal law, where the penalties are potentially extremely serious, that there is certainty for citizens in understanding when and how they may be breaching the law or how to act in a way that is not in breach of the law, and also obviously for lawyers in being able to advise people. It seems that is one of the things that is at risk—that is, where we start to have some vaguer concepts.

Ms Dixon : Yes. Another example that seemed to be touched on by the Law Council was that suggestion of a euthanasia situation. One could imagine that a family might allow or might be present when other members of the family decide to participate in euthanasia, so are those family members knowingly concerned? That is the danger with that airy-fairy description of 'knowingly concerned': it could be extended to cover all sorts of circumstances of mere presence which would mean that people are put through a prosecution, with all of the expense and trauma involved in that for the accused, and the expense involved for the Crown, when it would be preferable that the extension of criminal liability is curtailed to the conventions that had been carefully considered by the Criminal Code committee when they brought in that legislation.

Senator WRIGHT: Can I turn to the amendment proposed in schedule 1 of the bill, which would remove the requirement to show intent to manufacture a controlled drug. In your submission you express a view that if a person should be charged with importation of a precursor, with significant maximum penalties, it is reasonable that the prosecution should have to prove that the accused person actually intended that the precursor would be used to manufacture a controlled drug. Can you, Ms Dixon, provide an example of a person who might be captured by the proposed changes to the offences and be exposed to serious penalties for what may be a very low level criminal conduct—or maybe not criminal conduct at all?

Ms Dixon : You have things like ephedrine being included, and undoubtedly some of these substances get used in all sorts of weird and wonderful contexts such as the racing field. Sometimes they are used in horseracing, for example. That is serious but perhaps not of the same level of seriousness as manufacturing drugs like amphetamine, or ice. Given how severe the penalties are, with penalties up to 25 years for commercial quantities and so on, it is important that in order to be captured within that penalty regime they should be part of the illegal trafficking and importation field relating to drugs of dependence for human consumption. That there is already a rebuttable assumption imposed by the code under 307.14, that an accused person will be presumed to have the intention or belief that the precursor will be used to manufacture a drug. That already places the accused in a position where they would have to produce some evidence to rebut that presumption. To go further than that we would suggest is unnecessary. Where you have such heavy penalties, if there were to be any change we would suggest that what the Law Council has proposed is a preferable path—if there is an issue about the extension of liability to aiders and abettors and so on it will be preferable simply to extend the presumption to them by way of a change to the law in that fashion rather than removing the requirement to prove intention.

Senator WRIGHT: Mr McKenzie, as you have indicated, the Law Society opposes mandatory sentencing provisions in schedule 6. I put this question to the Law Council but I think it is a relevant one. The psychoactive substances bill was considered by our committee last year and we reported in September 2014. We acknowledged at that time the concerns raised by various law organisations about the introduction of mandatory minimum sentences for firearms trafficking offences. Are you aware of anything that has changed since September last year that would now justify a change of heart by the committee that would support mandatory sentencing in this context? Are the rule of law issues that were identified at the time and which have been raised by various submitters still the same as far as you are concerned?

Mr McKenzie : I am not aware of any relevant changes that might lead either way on the argument.

Senator WRIGHT: Ms Young, coming back to the issue that I was just asking Ms Dixon about, the introduction of recklessness as the fault element in importing offences in schedule 1, in your submission you note that the law of attempt at common law and under the criminal code has traditionally required that the fault element of the offence be intention or knowledge, in recognition of the absence of the full physical element. Can you explain a little more about this traditional principle of common law and how the changes proposed by this bill would weaken or water down that requirement. I think it is a useful process for people who are interested in what the changes might mean to understand what the context is.

Ms Young : Typically an attempt charge, if I can put it that way, proceeds because for some reason, either police intervention or otherwise, the physical actions to make up that crime have not been completed and therefore on that basis, because the physical acts have not been completed, the law has traditionally required that there be a high level or a full mens rea to compensate for the fact that the person has not committed all the necessary acts. We refer to the Stonehouse case—there are many cases going back a long time to demonstrate that if you are going to move away from the principal that a person is not guilty until they commit all the acts with the corresponding mental state for those acts, then there need to be some protections in place, so requiring a full mens rea of intention is that protection for the attempt defence. It really is important in any circumstance where that is going to be watered down that we need to consider whether there is a justifiable reason for it. In our submission we do acknowledge at paragraph 5 that we can see an inconsistency in circumstances, as explained in the explanatory memorandum, where the only reason that the attempt charge is being laid is because the police have substituted the heroin, for example, with plaster of paris. But the principle still remains that you need that full mens rea to compensate for all the other types of attempt related charges where in fact the whole actus reus has not taken place.

Senator WRIGHT: To put it in lay terms that is because where the actual fact has been completed there is strong evidence of intent because it has been carried out. Where that has not been completed there may have been intervening reasons that it has not, so then it is important as a matter of justice that it is established that there was a real intent to do that act, even though it has not been carried out.

Ms Young : Yes, exactly.

Senator JACINTA COLLINS: One thing that has occurred to me from your evidence and from the Law Council's evidence and that I would like perhaps each panel member to comment on quickly, if you could, is that the 'knowingly concerned' principle may have the perverse effect of discouraging counterterrorism activity by family or other community members because no-one ever wants to get caught with being 'knowingly concerned'. Would you care to give us your thoughts on that. Ms Young, perhaps you first.

Ms Young : Obviously, we are focused on the drug offences, but I think the same perverse effect could occur there. You would not want to reach out in fear or in concern that you would then be caught up in some type of drug related charge based on 'knowingly concerned'. I think the bigger point—and it was made by the Law Council this morning—is the uncertainty tied to that means that it is impossible for me in my own capacity as a solicitor to advise where that line is drawn between you being an innocent bystander and perhaps complying with—

CHAIR: An innocent bystander with knowledge.

Ms Young : with knowledge complying with perhaps a moral obligation to look out for your fellow citizens and report crimes, and where that slippery slope starts to lead you into being yourself potentially an offender.

Mr McKenzie : I would agree with the remarks that Ms Young has just made.

Senator WRIGHT: I would agree with those remarks as well. If I could comment, Chair, on where you interceded there. It seems from the example Dr Neal gave earlier today about the case and also picking up on Senator Collins's point that because these are complex human issues and interactions sometimes it may be that for someone whom we would perhaps call an innocent bystander or whatever there is a judgement call about at what point to be attempting to prevent something from happening or occurring, at what point they think they can be more effective by intervening and at what point they may then have to decide to go to the authorities or to prevent from occurring. That is the grey area that we are talking about here. I think the point the Senator Collins has made about the potentially perverse effect of having people not wanting to be involved at all is something that you have all commented on.

Senator JACINTA COLLINS: Thank you.

CHAIR: Surely, in Senator Collins's example, though, by reporting it to the authorities you would not be in trouble.

Senator WRIGHT: My point is not so much whether someone is concerned about being in trouble at one point but whether or not they might take a view that they can more effectively intervene to prevent something from occurring rather than just the devastating consequences of going to the authorities and not knowing what will occur from that. If they are using relationships within community to prevent things from occurring or talking people out of what they might call a crazy way of thinking and if there is a concern that by being at all involved they might then be subject to severe penalties, they might choose not to get involved at all. I suppose the argument might also be that they go straight to the authorities at the earliest opportunity, and I do not know if it is realistic that that is going to happen. I suppose I am thinking about what happened with the Bali Nine case, where there was information given. With the consequences of what happened there, people might think it is not necessarily always good to go straight to the authorities.

CHAIR: My question to all three is again that broad philosophical question—because the bill is really too detailed for this committee to enter into some of the intricate legal arguments; although I do want to come back to Mr Mackenzie on the mandatory detention issue shortly. But can I put this scenario to you: we as politicians in a democracy respond to what people out there are concerned about. If it had been my son who was at Holsworthy Army barracks and who was blown up—this is a hypothetical, of course—and the indication by someone who had knowledge to the authorities a day earlier might have prevented that, I would not have been terribly concerned about the legal niceties. I would have thought that anyone with knowledge should have reported it the day before, and therefore prevented an explosion at Holsworthy Army barracks—again, as I say, this is purely hypothetical. Whilst I have some sympathy with the lay importation of firearms, or the woman going to New Zealand with her husband, or even suicide—that is a personal view; I have some sympathy there—I think the community has moved on since the 60s and the 80s, with the prevalence of very serious crimes; not knowing whether you can go into a cafe in Sydney and suddenly be in real danger; or the terribly organised way that criminals operate these days. They operate with the best resources, they do not have the laws to worry about, they do not have to be pure on anything, and the authorities are finding it increasingly difficult in this modern technological age to deal with those very serious crimes.

I am just asking for a comment from all three of you, more on a philosophical level than directly on this legislation. This is legislation which, particularly in the past, some would have said is quite draconian. And some of the other bills we have dealt with have—again in the past—been thought to be quite draconian. But the community are wanting governments to deal with these issues and are not terribly interested in the legal niceties or in the impositions on individual freedoms and liberties, which I understand. But there is that contradiction. How do governments and parliaments deal with that?

Ms Dixon : Our position is that if you are a participant in the crime by way of aiding, abetting, counselling or procuring its commission, then you should be dealt with under the criminal law. And that is what the law already says. But you have got this problem that I think Senator Wright may have been raising where, with some offences—for example, people being suspicious that a member of their family or a housemate might be in contact with someone from ISIS overseas, and you are not exactly sure; you might want to go and sneak into their bedroom and start looking at some material on their computer, and then perhaps you might intend to question them about it, find out a bit more about it and what is actually going on. Now parents, family members, and housemates might feel very reluctant to go into the bedroom and attempt that kind of search or investigation—because of the risk of being knowingly concerned by that preliminary inquiry. So it is easier to take a blind-eye approach, 'I will just turn away from it, not get involved, be passive'. And so, in a sense, that creates a difficulty because the public is being asked to be alert and to keep their eyes open, and find out things and let the authorities know, and yet there is a real sense that you might be better off not to know and turn a blind eye.

CHAIR: But if it were my daughter who was about to be stabbed because of the information that this person might have had—in retrospect, I would have certainly been very angry if that person had not reported that to the authorities. It may have been the person being reported upon was completely innocent, but in this day and age with this happening to relatives and friends and acquaintances, it is a difficulty to make the judgement on whether that person is responsible for not going into the bedroom and looking at the computer and finding it out.

Ms Dixon : And are they knowingly concerned if they do not disconnect the internet from the house?

CHAIR: No, they would be knowingly concerned if they did not report it to the authorities I would have thought.

Ms Dixon : As a person with a background in criminal law, that is stretching the liability too far. I think Dr Neal referred to the old offence we used to have of misprision of a felony, which is not currently on our statute books. I do not think we should be trying to introduce that concept through the backdoor through these kinds of changes .

CHAIR: For those of us of the sixties, which regrettably includes me, the 1984 big brother is watching we thought would never happen—clearly all of this sort of legislation almost brings us to that point. Times have moved on. It is a difficulty for parliament is the point that I am making. I appreciate your comments Ms Dixon. Did either Miss Young or Mr McKenzie wish to have a broad philosophical comment on that?

Mr McKenzie : I understand your point of view, Senator, but I must say I am inclined to agree with Ms Dixon. Sitting here thinking about it, a person in that position who you might ordinarily think should report to the authorities may be paralysed by fear for example. Fear is a very substantial and understandable human reaction to these sorts of matters. When you recently mentioned the Lindt Café matter, my office is a short distance from that cafe and my building was actually locked down during that period. I was inclined to laugh it off but I had telephone calls and text messages from friends all over the place inquiring about my health, which was nice, but it occurred to me later that perhaps I should have been more fearful. It is difficult to condemn someone in those circumstances who perhaps out of fear may simply remain mute.

CHAIR: Mind you, you did not have any knowledge of what was happening across the road.

Mr McKenzie : Certainly not.

CHAIR: But had you had knowledge, the question then is would you be part of the problem if you had not alerted someone that might have prevented that?

Mr McKenzie : I agree with you, I think I would have been part of the problem but I think to impose some heavy criminal sanction on someone who makes a moral choice is difficult in these circumstances.

Senator WRIGHT: Can I make a comment or ask a question?

CHAIR: No, I would like Ms Young to answer my question first.

Ms Young : To pick up on Mr McKenzie's point, I think certainly the way that I view the situation is that there is the distinction to be drawn between moral obligations, very strong moral in the hypothetical that you talk about, and criminal obligations. If I can draw on an analogy that I use when I am teaching my students is that one of the ways for the layperson or the general public to come to terms with the criminal law requiring strong and strict standards in these areas is to appreciate what role it is that the criminal law is playing. The analogy that I use, although a little crude, is that in many cases or in general terms the criminal law is the ambulance at the bottom of the cliff—it can only attempt to prosecute and fix up something after the event has already occurred. We have other protections such as police investigating and other aspects of the state to help protect us before we fall off that cliff but the role for the criminal law and the heavy sanctions that go with that, particularly in the drugs area that we are interested in, and the expansion of that liability needs to be confined and justified in a broader philosophical sense based on that limited role that the criminal law can play in our broader society.

CHAIR: Mr McKenzie, on the International Convention on Civil and Political Rights: how was the absence of mandatory arrest and detention introduced into Australian law?

Mr McKenzie : You are quite right. Australia is actually the only democratic country in the world which does not have some form of human rights legislation like, for example, the United Kingdom, which has a similar bill to Victoria. At a federal level, we simply do not have human rights legislation, which means that although that treaty is binding under international law and Australia has had an obligation since 1980 to introduce it into its domestic laws it has only done it in a piecemeal fashion. There are some elements of the treaty which have been introduced, but there is no comprehensive piece of legislation. So you are quite correct in these two respects to say that it does not form part of Australian law. It is not unconstitutional to have a mandatory minimum sentence.

CHAIR: What was the actual wording of the convention?

Mr McKenzie : I have it here. The full article is quite—

CHAIR: Just the bit against arbitrary arrest and detention.

Mr McKenzie : Article 9 is only two sentences and it reads:

Everyone has the right to liberty and security of person.

And the particular sentence I was referring to, which was suggested by John Hood, the Australian ambassador in 1949, is:

No one shall be subjected to arbitrary arrest or detention.

Then there is a third sentence:

No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

CHAIR: How does mandatory detention offend against that? It is arbitrary arrest, I understand, and arbitrary detention. It is a decision of the law, which apparently applies to the third sentence you read.

Mr McKenzie : The precedent in the area is the effect that detention can be arbitrary, even though it is in accordance with law, and that has been affirmed as recently as last October by the—

CHAIR: But doesn't arbitrary detention mean that you are thrown in jail without a trial? Going back to the old Magna Carta, which was prominent in the last few days, you are not thrown into prison without a trial and without a proper sentencing according to law. The law may say it is mandatory, but how does that offend against the—

Mr McKenzie : That is certainly arbitrary detention, but arbitrary detention also includes imprisonment by the executive government, so to speak, as against an independent court, except with certain exceptions. For example, in the 20th century the High Court—to take one example in 1993 in a case called Lim—said that detention was an exclusively judicial function based on the adjudication of a criminal offence based on past conduct, except in certain limited exceptions. They would include the detention of people who are mentally ill, the detention of enemy aliens in a time of war, the detention of people who may have a serious infectious illness so as to protect the community and the detention of people arrested and being brought before a court. There are one or two other exceptions which I cannot quite recall at the moment, but the court's attitude was that the detention of anybody should be a matter mainly for the courts. When you get executive governments detaining people, that is when you go down the slippery slope to a totalitarian society.

CHAIR: It does, and having been a lawyer many years ago I understand the argument. But, clearly, the general public in a democracy have said that they have little regard for the legal profession, and particularly the judiciary, in some of the sentences being dealt out, which is why governments then feel compelled to oblige.

I understand that if you are in the trial and understand every aspect of the offence and the person it can be quite different, but the general public out there still look at judges and say, 'They're all too lenient. We demand that parliament do something about it.' Hence we end up in this situation.

Mr McKenzie : I understand the pressures on parliament but, with the greatest respect to the general public, I think their attitude is ill informed. There is no real—

CHAIR: It is a democracy. I often think they are ill informed when they elect the other lot to government. But, in a democracy, you just have to wear it.

Mr McKenzie : That is where we say fundamental rights come into play. When Australia has, over a long period of time, adhered to certain principles—and I might add that these principles are really principles that we have respected in our laws throughout the 20th century anyway, without regard to this treaty—we say that the tenancy of parliaments to have a majoritarian view—

CHAIR: A democratic view, you mean?

Mr McKenzie : A democratic view but it is also a majoritarian view—and, if a parliament goes over the top, it can end in injustice. If we look at the history of mandatory minimum sentencing, right back to the 19th century, we see, for example, that, in New South Wales in 1883 the then long forgotten Premier Sir Alexander Stuart introduced a range of mandatory minimum sentences for violent crime and within a year he had to repeal it because of the injustice that it caused. The traditional principle dating back to those days is that the sentence must fit the crime and the criminal. You mentioned the Lae example of the importer of ammunition, which I think is referred to in the Law Council's submission. That is a classic example of why—

CHAIR: Mr McKenzie, we would love to listen all day to your deep historical legal knowledge, but we do have very limited time. Thank you all very much for your assistance and contribution to the debate, particularly on the legislation before us at the moment. We very much appreciate it.

Proceedings suspended from 10:52 to 11:00